November 06, 2009

Allocation Questionnaire – this is typically submitted after the claim form and the statements of case by both parties. In which they give their position about a number of facts of the case e.g. what they think the main issues are, how much money is involved, how long it will take to try, how many witness they'll need to call, whether they'll need to call on expert evidence, if so how many experts will need to testify and how many joint experts etc. From this the court will decide to allocate the case onto one of three tracks:

Small claims courts –

less than £5,000 (and usually with tort it is considerably less than £5,000) In general they don't need expert trials and can be dealt with quickly and easily. This types of cases are tried by district judges and are rarely allowed up to appeal due to the small amount of money so in a sense, the judge's judgement is final. You don't actually need a lawyer – people should be able to come into court and sort it out with out legalities, and in some ways are actually discouraged from hiring a lawyer – If a case is such that a lawyer is required it is usually moved up.

Fast track –

meant to be a set of simplified but none the less complicated system – for claims of between £5,000 - £25,000, and where the issues are such that the case can be tried in a day with no more than one or two experts on each side, the presumption that there will be one expert, and that the experts won't even testify. Oral examination of experts would suggest that the case moves up to the next track. There is normally a set timetable for a case. The idea is that the trial should be completed within a year of the questionnaire being filed. They have limited and fairly standardised cost assessment. The normal practice is that at the end of the trial the judge decides on the amount paid there and then that day, and they're usually pretty standard amounts.

Multi-track –

for more complicated cases and over £25,000, where there is more experts and/or the law is more complicated. Multi-track cases will commonly be heard in the high court. They will typically have specifically tailored directions – orders from the judge saying how the case will proceed, and will typically involve one or more pre-trial hearings, so the judge can try and set the case up for trial to comply with the over-riding objective. These are complicated cases and need hands on action from the judge to try and ensure that the case runs efficiently. The courts may trial to resolve some issues pre-trial by getting rid of some smaller, auxiliary issues to try and get to the main case– they may strike out claims or defences if there is no reasonable basis for making them claims or defences that have no basis for making in law, or granting summary judgement- can be used for cases where the claimant won't be entitled to recover. This is to cover claims and defences that fail as a matter of law (insufficient claims or defences). Sanctions - If someone has violated the rules in the way they have handled the case they can strike out their claim or one or more of their defences, or they may move for a cost sanction – they will let the case proceed but they may either lose their interest, or have to pay for the costs to the other side. It's only in an extreme case that a court would throw the case out completely

Pre trial

Disclosure –

telling the other side that these are the documents you are going to use in the case, and give them full disclosure, and you are also required to disclose documents that may harm your case, particularly important for claimants.

Settlement –

they occur all the time in civil cases, 99% settle cases before trial, most before law suits are even filed. A major incentive for this is the part 36 offers are when one side offers to settle the case plus costs to date, if you accept this within 21 days (required), if the claimant turns it down and the courts goes to trial, and recover less than they sued for, the defendant would recover their costs from the part 36 offer. The claimant can also make this offer, if they recover more than this, the defendant will have to pay extra costs (additional interest or indemnity costs) must is be £50,000?

Civil trials work differently than criminal trials, typically they are trial by judges not juries, the ones that do are usually defamation. Typically witnesses don't give evidence in chief, they give typed evidence – the party is able to call on them to give oral evidence but this is usually to confirm or deny their evidence, to give evidence about changes since evidence given or to cross examine. Typically expert evidence is given in writing. Judgement is given at the end of the day – he is required to give written reasons as to why he has given this judgement.

There are three main ways to enforce the judgement:

seize some of the defendants assets, to raise money to cover the money owed to the claimant

Garnishment – you find somebody who owes money to the defendant and serve an order on them to pay the claimant e.g. banks and employers – there are substantial limitations they MUST have enough to live on, and you can only take a percentage.

Charging order on property – e.g. if they sell their house, you get your money before they get theirs.

You can appeal if you loose a claim, however it won't stop the other side from collecting. You must have leave to appeal civil judgements: by firstly asking the trial judge or the court of appeal, and proving that you have a reasonable chance of success. If you're really desperate, go to the Supreme court. Or, you know, accept it.

Insurance plays a tricky role in tort law, as most tort cases pretend it's not there. The theory behind tort law is that its supposed to find liability without referring to insurance, the idea behind insurance being that it is there to ensure against liability owed and not to create liability. But there are cases where its pretty clear that insurance plays a role, so we can't fully ignore it – Insurance is everywhere in tort. In most cases, the insurance company is the real party of interest - it is really the insurance company who's money is at stake.

First Party – when you insure against loss to yourself, e.g. if I own a home and I have home owner's insurance that will pay me for damages if there was a fire in my house.

Third Party - insurance against liability- tort liability, you cannot insure against contractual liability. Again, a home owner's insurance policy provides third party insurance as well – should somebody slip on the stairs in my house, injures themselves and consequently sues me, the policy will cover that.

Under the law, as a driver, if you want to go bare and not insure against damages to your own car you can, however, you MUST have at least third party insurance to insure against your liability to other drivers. If I did have an accident and it was my fault, and the other driver was to sue me for damages, in theory they are suing me, however in practise they are suing my insurance company, as it is the company that is going to pay for any damages.

Insurance companies try to assess your liability by assessing how much of a risk you are. Nonetheless this is imperfect, there is no way to tell exactly how much of a risk somebody poses until they have done something to prove it. The courts will often tend to be more generous towards plaintiffs because the cost of liability in insurance companies is spread around – indeed, Lord Denning stated is a case that things that are found to be negligent in the terms of driving, are unlikely to be negligent in other contexts, because they know the driver has insurance and therefore the insurance company will end up paying.

Because virtually all tort liabilities are paid by insurance countries, some people have suggested that we should abolish tort law – instead of having a court case to discover if somebody is at fault, let's just all pay our insurance premiums and we all get back recovery for our own injuries if you're hurt.

There is a system like that in effect in New Zealand, where they have abolished tort law for most personal injury cases, they don't worry who's at fault any more and instead if they're injured they make a claim against the fund which everybody pays premiums for to insure themselves against their own injuries. This way the idea of having to figure out who was at fault, and therefore who must pay, is gotten rid off, and instead they pay out compensation. The idea is that you can save a lot of money if you don't have to figure out who is at fault. The downside to this, however, is that if you don't give people an incentive to be more careful, they won't be.

Almost no one is sued who is not rich or insured, simply because they cannot pay the judges. Those who would not be able to pay the judges are often referred to as “justice-proof” as should they be sued, nobody would be able to reclaim the costs claimed against them.

Exploration of how the civil justice system works

Types of courts

County court – each county has at least one, and it is there for smaller claims, dealt with by two judges; district (smaller cases and pre-trial proceedings) and circuit judges (larger cases, His Honour). The cut off for the county court is £50,000, if you're suing for more you send it to high court

High court – in London, for larger cases over £50,000 and complicated, complex cases that involve very difficult legal issues such as defamation, heard by high court judges (Mr Justice …)

The general idea is to follow the same procedures but to follow streamlined procedures for smaller cases. There was a large scale reform of the civil justice system that took place in the late 90s, after a study that was looking into complaints that civil justice in this county took too long and cost too much money. Most people think this new system is an improvement, although it may not be entirely perfect. The basic idea was to reduce costs and reduce the reliance on the courts – i.e. letting making the pre-trial preparation (Pre-action protocol) more proactive in processing civil claims. The Civil Procedure rules are a new procedural code with the overriding objectives of enabling the court to deal with cases justly (i.e. insuring both parties are on an equal footing etc.)

The lawyers and the parties are now required to help he court achieve the overriding objective – by the court's duty to actively manage the case including encouraging the parties to settle the case. The court requires pre- action protocols to ensure that the case is dealt with quickly and easily, e.g. trying to agree on an expert in advance, a letter to give the defendant the chance to settle etc.

In effect, the defendants fund the courts system. It used to be that the court was funded for the poorer buy legal aid, but now, for the most part, legal aid is not available for tort cases and for those who cannot pay, most cases are trialled on a no win no fee basis. A claimant's lawyer agrees with them that they will only be paid if they win the case – this means if you're the lawyer, you will only take cases you're pretty sure you're going to win. However an uplift – an agreement that is you do win a no win no fee, you win more than your usually fee, which can be up to double your usual fee. This is to ensure that not only the “sure bet” cases are taken.

The loser pays rule – when a case settles or goes to trial, or even settles, whoever loses pays the other sides legal fees as well as the damages. This generally means that claimants don't pay their lawyers. However, the the defendant cannot pay, and is not insured, he will not pay the fees – lawyers must not only assess how good the case is but whether or not the defendant will be able to afford this. This also means that the claimant has to worry about the fact that if they lose they will also have to pay the other sides fees.

“After the event insurance” - when the no win no fee solicitor takes the case they go to the insurance company and say they have a good case, but the claimant could be liable if he loses for the defendant's costs and they should pay for the costs if they lose. The insurance company may agree on the grounds that they are paid so much money (usually the solicitors) and if they lose, they will pay the cost liability if they lose. If the claimant does win the case, not only do they receive the compensation and the legal costs, they also reclaim the cost of the after the event insurance.

The court has some discretion. They may decide not to give the claimant the full claim if they have done something wrong during the case. Alternatively, the defendant may win, but the court may feel that they should pay the costs of the claimant even if they don't award damages. This is the major weapon the courts have over the parties and their lawyers – costs. It is the one way of ensuring that both parties behave appropriately throughout the duration of the case.

In effect the court system is paid for either by the tax payer (NHS, police cases etc.) or the insurance companies through our insurance premiums

Third party claims – I'm not liable but if I am, then somebody else should be reimbursing me as its really their fault, i.e. I didn't cause the accident, but if I did its because I had faulty breaks, I'm going to sue the manufacturer

Any statement of claim has to be an accompanied by a statement of truth. A statement of truth is where the claimant and their solicitor say that they really believe that everything said in the case has been true – if you've found to have lied you can be prosecuted. This does not necessarily mean that if you lose you will prosecuted.

October 24, 2009

Torts of strict liability tend to focus on the claimant's injury. English law still adheres mainly to the fault principle – that is unless the defendant is at fault, then he is not liable. In areas where English law still applies the fault principle we should ask if they should if the shouldn't be changed towards the direction to stricter liability.

Issues of tort

Duty – a legal duty is in many ways the mirror image of a legal right, saying that I have a right to something is saying the same as saying other people have a duty not to take it away or infer with it. Any right implies some corresponding duty – if no-one else has a duty in something towards me then I don't have a right to it. A duty will typically correspond to a right. If I have a duty not to do something then you have a right against me that I not do it. Throughout tort law we are usually dealing with rights

In the context of negligence its usually with a duty of care – if the defendant has a duty of care with someone, do they have to worry about someone's rights. A classic example where there is no duty is that, in general English law, does not have any duty to rescue, the law in English and Wales do no impose any duty to rescue someone from danger.

Breach – assuming you have a duty did you violate that duty. You have a duty to act in a way a reasonable person would do. In general when talking about duties of care we're talking about a reasonable person would do in the circumstances. (In France its that you behave as a good father of a family would do). Did the defendant act in a way a reasonable person would have acted?

Causation – for ALL torts, the defendant is only liable if his misconduct caused the claimant injury. Some of the most complex issues in law come out of this issue of causation.

Actionable Damages – English law has restrictions on what damages you are able to sue for depending on what type of tort is involved – e.g. in negligence you are not normally allowed to sue because you are upset, if someone does something that's negligent, but the only damage that you suffer is that you are upset by it and your emotional distress doesn't cause you to have a mental illness then you cant sue for negligence on the other hand if it was an intentional tort you can sue the idea being that intentional damage if worse than careless damage. So we have to discuss the issue is there actionable damage? In general in tort, damages are the main remedy – you have to compensate for the injury you cause, mostly paying money

Types of damages -

Compensatory damages - designed to compensate claimant for the damages he has incurred due to the tort, plus pain, suffering and loss of amenity, its much harder to measure what excruciating pain for a month deserves in monetary value.

Nominal Damages – even if you didn't suffer any real compensable loss you can recover a small amount of money to vindicate of your rights, typically ten points. Sometimes its important to acknowledge that someone's rights are violated, which is why these types of cases are allowed to go ahead

Aggravated damages – typically available in intentional, and in some kinds negligent torts – to compensate for the feelings of outrage they have felt due to somebody's actions, designed to deal when someone's actions are not only careless but outrageous. They are typically not usually available to true negligent cases where someone has been momentarily careless but did not intentionally mean to cause harm.

Exemplary damages/ Punitive damages – explicitly designed to punish the defendant. They are added on top of any other damages awarded as a message that tort does not pay. English law is very restricted as to when these are allowed to be claimed, only a very small category of torts are these allowed.

Restitutionary damages – when instead of making the defendant compensating the claimant for what the claimant lost, we make the defendant give up what he gained. EG he has not HARMED someone in violating their rights but has gained from it, the court might be inclined to award restitutionary damages. Limited but occasional.

Defences – sometimes the law gives the defendant a defence, for most defences the defendant has to prove the defence.

History of tort

Societies develop over time, and the amount of resources (both time and money) dedicated to legal things over time.

Oldest torts in the UK are intentional torts – particularly assault, battery and faults, they go back the longest and you can see why they are the most serious torts and they are the ones which society almost has to provide remedies for, for if it doesn't, the likely result is going to be feuds, as people begin to take the law into their own hands to exact their own revenge.

Writ of trespass – the oldest form in which you used to sue someone. You had to find a writ to fit for what you were suing for or you couldn't sue. You needed one of these to get into the royal courts. The local courts often used trial by ordeal, so were less sophisticated. The Royal courts were much more sophisticated and used jury, however you could you could only get in with a writ of trespass, - they had to come towards you in arms and were engaged in the breach of the kings peace.

It became clear very soon that a new form was need, and the writ of trespass on the case, so you did not have to use a formulated writ, and could make your own, so they trespassed their case. However you had to show that you had suffered compensable damage, which you didn't have to prove in writ of trespass. It still plays a role in that you have to show which you have to prove damages in and which you don't.

The distinction that was usually given was direct and indirect injury.

There is a controversy over what the tort law was like in early days- a controversy which can't be settled. As long as all cases are trialled by juries it is hard to write up a trial. Possible they invented the tort of negligence to prevent business and railways to be as liable as they could have been to encourage industry.

In some areas particularly, property areas, liability was strict. If you treat something as if it were your property, even if you're innocent, you are liable. EG if you bought a stolen car without knowing it was stolen, or trespassing on someone else's land.

How did tort law develop? – England is the prototypical common law country. Derives from decisions by judges

Civil law is the main system of law in the main system of law in Continental Europe which is derived from Roman law – it derives from statues

Humans Rights Act 1998 – made the EU convention on humans rights part of English law. The UK signed on to this agreement. It meant that you have a right to sue for your rights in English court without going to Strasbourg. It may require some modifications to the law, eg English law is very favourable to those suing for liable and defamation, some have said in certain respects that the English law is going to have top change as it is a violation of freedom of speech within the human Rights Act.

Purposes of Tort Law

Many argue its the main purpose; the idea that you need to have people liable to pay damage otherwise they will not take account of the full effect of their activities.

If people couldn't sue then people would take the law into their own hands, so people must be allowed to reclaim costs

Loss spreading – you should create liability so that the costs of accidents gets spread out.

Corrective justice – there is a basic moral principle that says if you cause a loss you should pay for it. This implements this based notion.

In many cases tort liability will implements more than one of these policies OR they will conflict.

Law of civil obligations to one another, tort tells us what we owe each other subject to law contract and what happens if we violate these obligations to one another.

If you commit a crime that's an issue between you and a state – when it happens between individuals that can be BOTH a tort and a criminal offence – eg GBH. Tort law is mainly about the victim and their compensation for the offence

McBride and Bradshaw's tort law - 3rd edition BUY

Deacons Tort law - 6th edition

Seminar - Ashley. READ focus on the judgement

lecture handouts available in the tort pigeon hole and on the module website - - Will also include new cases

The Tort Wars – short division of views as to what tort law is all about; one is that tort law is mainly about losses and when you can sue for them and that it is simply policies that decide WHEN we can sue for a loss (more mainstream view – loss based view), the second is the rights based view, that tort law is about protecting our rights, so if there is no recovery in tort law there are no rights

Criminal law is about punishment – the government saying you must not do this, tort is about our duties to one another, if you harm someone by violating their rights you are obliged to compensate.

Tort law is part of what is called the law of obligations. The one is contract law the other is the law of restitution. Some of the losses caused in tort cannot be compensated in money. The law can invoke injunctive relief where the court orders you to do or not to do something (think restraining order) Nuisance tort – eg when someone uses their land in a way that annoys someone.

The person who sues is the claimant (“C”), in older cases (before 1990) they're the plaintiff (“P”)